Lawyer: Link Wasena Park Case with Heterosexual Oral Sex Case

The privacy issue was discounted in the Roanoke case because the
solicitations were made in a public park. The Frederick County case involved a
motel room.

By Laurence Hammack, The Roanoke Times

Ten men convicted of looking for oral sex in a Roanoke park are trying to
link their challenge of Virginias sodomy law with the case of an 11th man
who did more than look in a Frederick County motel room.

In a motion filed Thursday with the Virginia Supreme Court, attorney Sam
Garrison asked the court to go beyond the facts of his case, which involves 10
gay men convicted of soliciting undercover police officers in Wasena Park.

Garrison wants the high court to take the rare step of consolidating his
appeal with another case in another court -- that of Fred L. Fisher, who was
convicted of having oral sex with a woman in Frederick County.

Fisher had been charged with rape and forcible sodomy, but was convicted of
the lesser offense of consensual sodomy, which in Virginia is considered a
"crime against nature" punishable by up to five years in prison.

While the sodomy law is often associated with the prosecution of gay men,
Fishers case "involves essentially the same substantial constitutional
questions" as those raised by the Roanoke defendants, Garrisons motion
states.

Fishers appeal is scheduled to be argued before the Virginia Court of
Appeals on March 14. While it would be unusual for the Supreme Court to
consider the case along with another already before it, Garrison said, there
is precedent for it to do just that. Fishers attorney does not object to
such a move, he said.

Virginia law makes it a felony to have consensual oral sex, regardless of
whether it happens in public or in private, or between homosexuals or
heterosexuals.

Garrisons appeal is based on the argument that the law is an
unconstitutional invasion of privacy. But in rejecting the appeal last year,
the Court of Appeals ruled that the 10 men had no legal standing to raise the
privacy issue because their actions were made in a public park.

Fishers case, however, involves the privacy of a motel room.

That, plus the fact that it involves heterosexual contact, "presents
what is overwhelmingly the most common fact pattern" to which the sodomy
law applies, Garrison said. For that reason, he said, the Fisher case is the
"perfect vehicle" for the high court to find the law
unconstitutional as it applies to everyone.

Roanoke authorities have said in the past that while the law technically
applies to everyone, they use it only to charge people who engage in sex in
public places.